The holidays are upon us, and hopefully it will involve some leisure time at a resort, amusement park or similar establishment for at least some of us, in order to conclude what has most probably been a busy year for everyone. One must unfortunately consider that this also involves partaking in activities that potentially pose a threat to you or others, and which may result in a situation where you need to claim damages from the establishment due to injuries you sustained at their premises. This is where disclaimer notices come into play as most establishments have these notices or warning signs displayed.
Disclaimer notices are documents in terms whereof a business or establishment excludes liability for certain events. These are very useful instruments utilised by businesses to protect themselves from various claims for damages sustained by their patrons or customers due to certain incidents or events.
An example of a disclaimer notice is "Caution, enter at your own risk." You will probably have seen these notices or variations thereof at shopping malls, hotels, resorts and similar establishments.
There are hundreds of court cases that deal with the issues surrounding disclaimer notices and whether a business or institution can rely on its terms in order to escape liability for the damages suffered by patrons, guests or customers.
When these exemption clauses are displayed on notice boards in certain establishments, the doctrine of quasi-mutual assent comes into play. The doctrine was described as follows by Blackburne J in Smith v Hughes (1871) LR 6 QB 597: "If, whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and the other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms."
In the matter of Rhoode v the City of Cape Town (11785/2009)  ZAWCHC 110, Mr Rhoode (the respondent), a 19-year-old male at the time of the incident, went down a waterslide on his stomach, hit his head at the bottom of the exit pool, and ended up with a broken neck as a result of which he was rendered a complete quadriplegic. The incident occurred at the Mnandi Resort which was controlled by the City of Cape Town (the appellant).
In this matter, Mr Rhoode listed various duties of care in his particulars of claim, including that the waterslide should have been constructed in such a manner so as not to constitute a danger to users and that the water slide should have been monitored by employees and / or lifeguards. Mr Rhoode further alleged that the appellant breached its duty of care in various respects. The appellant denied in its plea that it owed Mr Rhoode a duty of care and furthermore pleaded that Mr Rhoode, by entering the resort, agreed to the terms of the various disclaimer notices displayed all over the resort.
Examples of the various disclaimer notices referred to in the Rhoode matter include the following: various notices close to the main pool stating that the pool rules needed to be followed, that patrons may not run and dive and furthermore that the water was shallow; notices near the ladder to the waterslide informing users to descend the waterslide feet first and specifically prohibiting other manners of using the slide such as descending head first. The respondent's testimony was that he was aware of the various notices, but that he did not pay any attention to them. He further testified that he was unaware that the water in the landing pool was only 0.75 metres deep, and had he known this, that he would not have descended the waterslide in the head first position.
The court a quo held that the warning signs of the appellant were inadequate and ineffective in that they did not specify the nature of the risks involved in descending the waterslide head first. There was also no warning sign at the slide exit indicating the depth (or rather shallowness) of the exit pool. The court accordingly held that the contents of the notice boards were ambiguous and that they were to be interpreted against the appellant. On appeal the court agreed with this finding and the outcome of the liability hearing (which also involved other considerations by the court that fall beyond the scope of this article) was that both parties were 50% to blame for the event that resulted in the damages claim.
In the matter of Durban's Water Wonderland (Pty) Ltd v Botha & Another 1999 (1) SA 982 (SCA), Mrs Botha and her 2-year-old daughter were injured when they were flung from one of the rides at the amusement park. According to Mr Jackson, one of the experts who testified in the matter after having investigated the machinery, the problem was caused by a freak failure of one of the hydraulic arms that operated the particular ride.
The amusement park denied liability in its plea on the basis that there was a contract between them and Mrs Botha wherein it was agreed that they are exempt from liability in respect of any injuries or damages arising out of the use of the amusement park's amenities. This was due to various notices erected prominently all over the amusement park which stated the following: "The amenities which we provide at our amusement park have been designed and constructed to the best of our ability for your enjoyment and safety. Nevertheless, we regret that the management, its servants and agents, must stipulate that they are absolutely unable to accept liability or responsibility for injury or damage of any nature whatsoever whether arising from negligence or any other cause howsoever which is suffered by any person who enters the premises and/or uses the amenities provided."
The court a quo, during the trial proceedings, considered 3 issues, which were: "(i) Whether a disclaimer contained in a notice painted on the windows of the ticket offices in the amusement park had been incorporated into the contract governing the use of the park's amenities; (ii) whether on a proper construction of the notice the appellant was exempted from liability for negligence; and (iii) whether the appellant, as operator of the amusement park, had been negligent." The Magistrate in the court a quo found against the appellant on all 3 issues.
The court in the SCA case considered the contents of the amusement park's disclaimer notices and opined that it made specific reference to negligence in the design or construction of the amusement park's amenities. The court then held that "The ground of negligence relied upon clearly related to the design or construction of the amenity. It follows that the respondents' cause of action was one which fell within the ambit of the disclaimer." The court was furthermore satisfied that the language used in the disclaimer notice was capable of one interpretation only, being that the appellant would not be liable for any injury or damage suffered by anyone using the amenity.
The next issue the court had to consider was whether there was an agreement between the appellant and the respondents pertaining to the terms of the disclaimer notice. According to Mrs Botha's evidence, she didn't see any of the disclaimer notices at the amusement park, but she was aware that amusement parks and similar establishments contained these kinds of notices. The court was also satisfied that the appellant had taken sufficient and reasonable steps in ensuring that the content of the disclaimer notices was brought to the attention of its guests in that they were prominently displayed at the ticket offices where one would normally expect to find such notices. The court accordingly concluded that, based on the doctrine of quasi-mutual assent, the appellant could operate under the presumption that the respondent consented to the terms of the disclaimer notice and that she was bound to it. The SCA accordingly found in favour of the appellant and the respondents' claim was dismissed with costs.
The Consumer Protection Act is also relevant pertaining to the issue of disclaimers and the following is stated in Section 49, with the heading "Notice required for certain terms and conditions:
- Any notice to consumers or provision of a consumer agreement that purports to –
- Limit in any way the risk or liability of the supplier or any other person;
- Constitute an assumption of risk or liability by the consumer;
- Impose an obligation on the consumer to indemnify the supplier or any other person for any cause; or
- Be an acknowledgement of any fact by the consumer, must be drawn to the attention of the consumer in a manner and form that satisfies the formal requirements of sub-sections (3) to (5)"
Section (2) of the CPA addresses instances where a disclaimer relates to an activity or facility that is subject to risks of an unusual nature that an ordinary consumer would not normally be aware of, and that can result in serious injury or death. In these instances the supplier must specifically draw the fact, nature and potential effect of that risk to the attention of the consumer.
The provisions of sub-sections (3) and (5) are simply to emphasize the requirement that the notice must be written in clear and plain language and that the consumer must be given an adequate opportunity, depending on the circumstances, to consider and comprehend the notice.
Sub-section (4) is interesting in that a disclaimer will be robbed of its effectiveness where it is only drawn to the attention of the consumer after the consumer entered into the transaction, engages in the activity or enters or gains access to the facility. This will, for example, be in instances where a booking for accommodation is made online and the relevant disclaimers are only brought to the attention of the consumer once they gain access to the facility.
In conclusion, if you are an establishment which offers activities which can be dangerous, ensure that your disclaimer notices are written in clear and unambiguous terms, that it is specific with regards to the risks it is meant to cover, that these notices are prominently displayed and brought to the attention of guests or customers, and, depending on the potential danger, that all additional and reasonable steps are taken to ensure the safety of everyone making use of the activities offered. It is also important to note that no disclaimer will protect an establishment from liability in instances of gross negligence.
As a visitor to these establishments, ensure that you take note of the disclaimers and adhere to the warnings, and rather err on the side of caution in order to avoid the risk of serious injury to yourself or others. Do not proceed on the illusion that you can simply ignore these disclaimer notices and then claim that you are not bound by the terms thereof. As explained above, if the establishment took reasonable steps to ensure that the disclaimer notices were brought to your attention, the doctrine of quasi-mutual assent will apply.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.